Kofi says Iraq war was illegal under UN charter

Great Debates
81

Once the Senate ratifies a treaty, that treaty is coequal with federal laws. The treaty is therefore to be considered the same way every federal law is treated, from speeding tickets on federal property to antitrust laws.

If you will recall, federal laws are subject to the US constitution. Accordingly, a treaty cannot give the federal government more power than it is otherwise allowed by the constitution, but a treaty may grant powers that are within the boundaries of what is constitutionally allowed.

International law is the term used to describe the framework of treaties to which countries belong. Each of the countries ratifies the treaty in a manner analogous to manner in which the US does, and subsequently, each member country is subject to international law to the extent permitted by their respective constitutions.

Because treaties are law in the US, it is quite possible for an act of the US government to be illegal in the traditional sense. If the treaty was duly adopted and its terms were abrogated, then those abrogating acts are ipso facto illegal. The issue is then whether there is a mechanism for enforcing the treaty against the offending party.

Congress cannot change treaties. They can repudiate them, but they cannot alter them to suit their tastes. The present administration would have us believe that they were acting in accordance with the UN treaty in invading Iraq. That is a total crock. The US can tell the UN to fuck itself, but without an explicit resolution giving the US the authority to invade a sovereign country, the US is in violation of the treaty and the invasion is therefore technically illegal. But again, since the UN could do nothing to stop the US in this case, the question is kind of moot isn’t it?

While the UN is/was powerless to stop the US actions, the US cannot now turn around and claim that their actions were perfectly legal. They were not.

CJ

82

Sorry. It doesn’t work that way. The US dies not get to autocratically decide that whatever it deems legal for it to do within its borders is therefore legal for it do do anywhere else.

83

Yes it does. It certainly has to ask whoever’s borders your talking about, but the decision is up to them together.

Really I cannot understand your obstinance on this issue. If you are saying it should not work that way, or you don’t want it to work that way fine. Everyone is entitled to thier own opinion. But you are saying it does not work that way, when it clearly does. Can you explain the mechanism by which you think “it” will be prevented from working this way?

84

Quite true. But duely enacted congressional statutes are slightly different. If any government official did something which was forbidden by duely enacted treaty then they would be prosecutable or actionable under the United States constitution. There could always be portions of the treaty which allowed foriegn governments to prosecute them also.

However, Congressional statutes are coequal with treaties. A statute does not change the treaty, that is it does not alter the agreement. But it can make a United States law in conflict with the treaty. In such a case, since the treaty and the law are coequal, the new law becomes the law of the land. It does not, again, alter the treaty. Any provisions of the treaty which other countires might wish to avail themselves of would still be valid. However, if someone wanted to sue the government, or prosecute the actors under United States law, they would be SOL.

As I said, the other signatories of the treaty could avail themselves of whatever provisions the treaty granted them to object or sanction the US.

85

You all are getting wrapped around the axle. The congressional war resolution and the UN Charter were never in conflict. They are both laws, and the President must follow them both.

If you really want to go to the insanity that the Iraq war resolution supercedes the UN Charter, which is about as tin-foil hat wrong as one could get, it is my understanding that a newer statute, when deemed in conflict with an older one, does away with the whole old law, not just one section. We have not, I repeat not, withdrawn from the UN. The UN Charter is still the law of the land.

You should mention that the cite that I found proved you wrong. There was no court case that ruled the war constitutional. As I suspected, the court refused to rule on the lawsuit.

And you are wrong again on international law.

See Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796): “when the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.”

See the letter from Thomas Jefferson, Secretary of State, to M. Genet, French Foreign Minister, June 5, 1793, which construes the law of nations as “an integral part” of domestic law.

And finally, Foster v. Neilson, 27 U.S. (2 Pet) 253, 314 (1828), in that international agreements entered into by the US are “to be regarded in court of justice as equivalent to an act of the legislature, wherever it [the agreement] operates of itself, without the aid of any legislative provision.”

Give me a break. I think you’re taking, as a starting point, the stance that we don’t need to be bound by the UN Charter, and then struggling to find some justificiation for that stance. It just doesn’t wash. Either the Constitution accepts treaties of the law of the land, or it doesn’t.

Congress still has the Constitutional power to declare war. Nobody in their right mind says that the war resolution passed by Congress was either unconstitutional or a violation of international law. The UN Charter doesn’t bind Congress because it doesn’t say, "legislatures shall not pass war resolutions.’ The UN Charter only limits the execution of wars, which is a limit on the United States that pertains most directly to the President. Congress doesn’t invade foreign countries, the President does.

If you’re willing to accept the UN Charter as law in this area (which I realize you are not), the UN guarantees countries the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN.” A preemptive, or preventative war, is not authorized by the UN.

In terms of customary international law, a preemptive attack is only justified if a) the threat is real and imminent, and b) the response to the threat is proportional. The war in Iraq clearly fails on the first count. So, it was also illegal by the standards of customary international law.

You misunderstand. I wasn’t talking about the Iraq war, I was talking about ANY war. No federal judge anywhere is willing to take the risk of precipitating a constitutional crisis between the Executive and the Judiciary on matters of national security. Courts have always dodged this issue. Ask any lawyer around here.

86

I’m just going to shut up from here on out and let Ravenman do the talking on this issue. He does a much better job of it than I do.

87

This is the crux of the whole matter, wrt US law! If no judge is going to rule that the law or action is illegal, then it is in fact legal. And your opinion on this matter is no different from mine when I say the minimum wage is illegal (unconstitutional).

88

You misquoted me. “DtC- there is no such thing as “International Law”. Really. No law that wasn’t at the very least ratified by Congress has no authority at all in the USA- or AFAIK, in most Soveriegn Nations.” Is what I really said. In other words, if we haven’t ratified a Treaty, the US isn’t bound by “international law”- whatever the hell that is. In fact during the League of Nations period, Congress made that rather clear. The USA is not bound by any Law that isn’t Consitutional.

The USA has taken the postition that the invasion of Iraq was “a preemptive attack is only justified if a) the threat is real and imminent, and b) the response to the threat is proportional”. Altho is it your OPINION that the war “clearly fails on the first count”, there is only one body that gets to make that call. And, it is not a few posters on the SDMB- it is the UN Security Council. Unless you are a delegate to that body, stating that “The war in Iraq clearly fails on the first count” is just a fart in the wind. The UN Security Council apparently thinks otherwise. True, I will agree that their decision (or actually lack of one) is completely politically motivated, but the UN is a poltical body- they make many many decisions that are not based upon what’s “right” but upon what is Politically expediant. Live with it. :stuck_out_tongue:

Or, write them a nice letter staing that you know more about International Law than they do, and you’d be happy to come over there and explain it to them. :rolleyes: :dubious: :stuck_out_tongue:

89

It doesn’t matter how you phrase it, you’re still off. Customary international law – which is international law that has not been formed through treaties and executive agreements – are considered real law by the courts, so long as domestic legislation does not override or contradict. See Ware and Jefferson cited above. Customary international law is created through the general assent of nations to certain principles, such as the Caroline incident in the early 19th century that established guidelines for preemptive war that I refered to earlier. See more on Caroline on pages two and three.

First, this is the Straight Dope Message Board. Folks are allowed to voice their opinions. Last time I checked, one need not be in a position of authority on a particular issue in order to debate and make their thoughts known. I will note, however, that it is awfully helpful in a debate to have some familiarity with the workings of a particular matter, such as international law, before airing opinions that are out of left field and unsubstantiated by fact.

Second, I have no clue what you’re talking about when you imply that the UNSC authorized the war due to imminent threat. It didn’t happen. I can only assume that I am misunderstanding the point you’re trying to make. The point is moot anyway, because the UNSC does not have to rule that a country may act to defend itself against an actual, imminent threat; international law guarantees that right. Under the UN Charter, the UNSC must only act to authorize an offensive war, or a preventative war, which the facts clearly indicate was the nature of the Iraq war.

90

The UN Charter is a ratified treaty, Deth.

91

  1. What Jefferson said in a letter 200 years ago :rolleyes: does not bind the USA to anything. Show me where one person went to prison in the USA for violating “international law”, where they had no US statute that covered the crime. :dubious: If it isn’t illegal under US Law, it isn’t illegal in the USA. Note that for many purposes a RATIFIED treaty is US law. But if it isn’t ratified, it is meaningless within our borders. Yes DtC- the parts of the UN charter have been ratified. AFAIK, however, there are some decisions made by the UN under changes in the charter that we have decided not to accept & ratify.

  2. No they didn’t. They didn’t have to. What they have to do is say the war is “Illegal”- which they have failed to.

Let me give you a real world example. Say the Mayor of a large City shot an intruder in his back yard. That could be murder, in fact the stautues would say it was. The Mayor claims he was in imminent fear for his life, as he says the intruder had a weapon. No such weapon was found. But the DA declines to press charges, and the Mayor isn’t even arrested. Hmm, could it be for Political reasons? Certainly if could. But the fact remains- that the Mayor still isn’t guilty of an illegal act because; the only group to decide such an action is illegal is the People (in the form of the DA, a Judge and a Jury). And the “People” have decided to ignore the act, accepting the Mayors rather dubious story. No charges, trial and conviction, no illegal act. And no matter how many letters-to-the-editor you write insisting that the Mayor IS guilty can change that- until a JURY makes that decision.
The Security Council has declined to hear the case and make a decision on whether the USA’s act was illegal under the Charter or not. Thus, in the absence of such a decision, such act is legal. No matter what you think, or the reasons for the lack of a decision. Now, of course- you have every right to say that you think that the Security Council should make such a decision, as the USA in your opinion has clearly violated the Charter. :dubious: However, until & when the Security Council makes such a decision (a day after hell freezes over), the uSA is “innocent until proven guilty”. :stuck_out_tongue: I agree our main reason turned out to be nearly entirely wrong. But apparently the SC doesn’t care. So- until they do care, the War remains legal. It is legal in the USA under US law, and there has been no successful challenge under treaty law. :stuck_out_tongue:

92

You have it backwards. The UNSC has to say it’s legal. The burden of proof is on us not them.

93

International law is not criminal law. But I can show you a case in which a person was awarded a civil judgment based solely upon customary (ie, unwritten) international law. The Judiciary Act of 1789 included the Alien Tort Claims Act, which established Federal court jurisdiction over tort claims relating to “the law of nations.” (See 28 USC 1350.)

In 1980, in Filartiga v. Pena-Irala, a former police officer was found liable for damages because he had tortured the plantiffs while in Paraguay. Federal courts found that the police officer’s torture constituted a violation of the law of nations. Summary and text here. Choice quotes:

The first time that the UN Security Council said that Iraq was in violation of its post-1991 resolutions was on November 8, 2002. By your thinking, Iraq did not violate any international law for 11 years, because the UN Security Council did not say so.

Of course, this is an absurd chicken-and-the-egg argument. Iraq was very clearly in breech of UN resolutions prior to November 11, 2002, and the US was clearly in violation of the UN Charter as of March 19, 2003. One must have blinders on not to acknowledge the overwhelming amount of fact in each claim.

I honestly have no idea why someone is putting so much effort into defending an invasion as legal under international law if one also makes the bizarre claim that international law does not exist. No matter how much I may disagree with him, at least there is forthrightness in Richard Perle’s acknowledgement that the war violated international law, but that it was worth violating international law for.

One can’t ride two horses at one time: either acknowledge that international law exists and was violated; or stick by your guns and believe that the the United Nations and international law is meaningless. The assertion that the UN Security Council could, in theory, declare the war illegal is straddling two mutually exclusive stances: either the UN Charter is meaningless, and the UN’s condemnation of Saddam is, by extention, without merit; or the UN Charter means something and the United States must abide by it. There is no middle ground. You can’t be intellectually honest and argue both sides.

94

I’m not sure why you say this. You have repeated it many times but never backed it up. disputes often work in the fasion described. It is the agrieved party which must proclaim his agrevation and then provide substance to it. It would be a strange world indeed if every action taken by every nation had to be proved legal.

95

I don’t understand this either. The violations occured but teh finding of such did not occur until later. Just as in the case of the Iraqi invasion. If the UN ever finds it to be illegal, it will have been illegal from the begining. Until then, however, any statements to that effect are just statements.

96

  1. Torture is illegal in the USA is it not? And, the Court (if you read your case) did not base it decision on any one “international law” (although it quoted many) it based it on “the Law of Nations”. “There now exists an international consensus that recognizes basic human rights and obligations owed by all governments to their citizens … There is no doubt that these rights are often violated; but virtually all governments acknowledge their validity.” This is what is also known as "Crimes against Humanity. Of course, such “crimes against Humanity” exist (and were much of the basis of the Nuremburg trials), but they are not illegal in the USA because some treaty that the USA did not ratify says so- they are illegal because they are generally accepted as being outside any statute, International or National. No Law or treaty passed or signed by anyone/anywhere that was *not ratified by the USA * has any validity inside the USA. However, certainly “Crimes against Humanity” are still illegal -whether or not any Law or treaty makes them so . The “Law of Nations” does not recognize any particular law, or treaty- it treats all of them as a “body” of law, and weighs them against humanitarian principals.

  2. If a Man commits a murder 11 years before he is tried, is he guilty of that crime during those 11 years? Of course not. He is guilty as of the time he is convicted- of a crime 11 years prior.

  3. Where did I say that the UN is meaningless? All parts of the UN Charter that have been ratified by the US Senate are Law in the USA insofar as they do not violate the Constitution. If they contridict a Federal Statute, then the Courts must decide which of the two are binding in the USA. I beleive that the Charter establishing the UNSC was indeed ratified by the USA, thus; it stands here. If the UNSC ruled that the USA was in violation, then indeed we’d have a conflict between Treaty and Statute, and SCOTUS would likely have to make a ruling. In that case, I’d have to say that until then, your argument that the USA’s act was Illegal would stand until we heard from SCOTUS. I’d stand behind whatever SCOTUS ruled, as that’s what the Constitution says.

So far, the USA hasn’t even been charged with violating the Charter. Thus, technically, it isn’t “guilty”. I cheerfull admit that if a nation with a lot less clout did what we did, there certainly would be charges (at least) brought against them in the UNSC. We have evaded the charges so far because of our huge clout (but- see again, my parable about the mayor).

Now, if you ask- “was the Invasion Immoral or Unethical?” then you have another debate entirely. I have consistently said that we should not have invaded a Soveriegn nation without UN approval.

97

REpeated assertion does not make this any more persuasive.

Does this apply to all military action? And if you offer up a “self-defense” exception, please spell out who gets to determine what is or is not legitimate self-defense, and whether or not they need to be consulted in advance.

98

Under the UN Charter, any non-defensive attack on the sovereignty of another country is an illegal act of aggression. It is de facto illegal. It is not something the UNSC has to prove.

What makes it defensive is if it is a direct response to an armed attack. In any other case, the UNSC must athorize force.

The “imminent threat” definition of self defense was actually contrived by the Bushies in 2002.

The UN Charter does not accept any justification for an attack on sovereignty other than as a response to an armed attack. This is what the US helped to author, this is what we signed, this is what we ratified. The attack on Iraq was not a response to an armed attack, nor would it have even been justifies under the Bushie’s recooked definition of self-defense.

And just to cut off any “Saddam is a bad guy” angle to justify the invasion, please see United Nations General Assembly Resolution 3314, Article 5, section 1

It’s an armed attack or nothing.

99

BTW, just so we’re all clear, theoretical arguments aside, we all now agree that the invasion of Iraq served no defensive purpose, right? We know the “imminent threat” was bullshit, right?

Just checking.

100

No.